Understanding the Slavery-Abortion Analogy

In both Dred Scott and Roe, the justices of the Supreme Court had to decide what it means to be a person, whether human beings can be considered property, and what it means to be deprived of liberty. They got it wrong both times.

Analogies between slavery and abortion are frequent in American politics. In his recent decision in Planned Parenthood v. Abbott (2013), federal district judge Lee Yeakel joined the long list of people who insist that abortion “is the most divisive issue to face this country since slavery.” Politicians and pundits from Ronald Reagan and George W. Bush to Alveda King and Laura Ingram have invoked the history of slavery when speaking about abortion. Mike Huckabee and Paul Ryan are the most recent conservative figures to make headlines for drawing analogies between these two issues.

Commentators on the left invariably denounce such comparisons, yet many show very little familiarity with the arguments they are denouncing. In a recent article for the Daily Beast, for example, Jamelle Bouie offered a confused commentary directed at Huckabee and Ryan. “That slaves, unlike embryos, were fully autonomous doesn’t seem to occur to either,” Bouie writes, “nor does do [sic] they seem to understand that the earliest abolitionists were slaves, a far cry from anti-abortion activists, who—from what I can tell—aren’t fetuses.”

Although pro-life activists—like all adult human beings—once were human beings in the fetal stage of human development, this is completely irrelevant to the actual points of the comparison. The analogies between slavery and abortion are made to highlight some legal, moral, or political principle thought to overlap both issues. There is certainly room to criticize and debate the merits of these analogies, but critical engagement first requires understanding.

Basic Moral Principles

The most frequent comparison between slavery and abortion is made at the level of basic morality. Slavery and abortion, many insist, each violate the basic moral principle that persons ought never to be treated as things to be used or discarded. In preparation for the 2005 Senate Judiciary Committee hearings on the legacy of Roe v. Wade, the original plaintiff in Roe, Norma McCorvey, submitted a document summarizing this point of comparison. “When slavery was constitutional,” she insisted, “we treated one class of humans as property. We are treating the humans in the mother’s womb as property and less than human when we say it is OK to kill them.”

Pro-lifers often argue that the social and linguistic dehumanization of enslaved human beings in nineteenth-century America is eerily similar to the dehumanization of human beings in the womb today. In Abortion: The Clash of Absolutes, liberal legal heavyweight and Harvard Law Professor Laurence Tribe conceded this possible moral connection between the two issues. Noting one feminist legal theorist’s contention that “fetal life has value when people with power value it,” Tribe responded that “the same thing was once said of slaves: the value of black Americans was less than the value of white Americans in the view of people with power.” Although Tribe is pro-choice, he at least acknowledges that the comparison between abortion and slavery on the level of basic morality is not groundless.

In reality, philosophers and legal scholars have been debating whether slavery and abortion are morally analogous for the last forty years. Two years before the Court rendered its decision in Roe v. Wade, Michael Tooley began an article in the prestigious journal Philosophy&PublicAffairs “by considering the similarity a number of people have noted between the issue of abortion and the issue of Negro slavery.” Tooley’s article offered one of the first moral defenses of infanticide, and Tooley tried to distinguish the structure of his argument from the arguments once made in defense of slavery.

Others writing in the 1970s were not convinced that the two issues were completely unrelated. In A Private Choice: Abortion in America in the Seventies(1979), Berkeley Law Professor John Noonan asserted that there has always been “a propensity of professionals in the legal process to dehumanize by legal concepts those whom the law affects harshly,” a point he developed through a detailed analysis of the jurisprudence of slavery and abortion. In more recent years, Harvard's Mary Ann Glendon has criticized the Supreme Court's abortion jurisprudence for relying on a “language of dehumanization,” and Princeton’s Robert George has argued that abortion resembles slavery “in its denial of the equal dignity of a particular category of human beings.” The academic debate, of course, is far from over, but at least a few serious thinkers have found the moral parallels between slavery and abortion to be compelling.

Legal Doctrine

Others frequently draw comparisons between slavery and abortion to highlight some analogous legal doctrine or political principle. Before announcing his support for abortion rights during his bid for the presidency in 1984, Jesse Jackson argued in a 1977 National Right to Life Committee Newsletter that if

one accepts the position that life is private, and therefore you have the right to do with it as you please, one must also accept the conclusion of that logic. That was the premise of slavery. You could not protest the existence or treatment of slaves on the plantation because that was private and therefore outside your right to be concerned.

Jackson’s comparison was not arbitrary. In a famous antebellum slave case, State v. Mann (1829), Judge Thomas Ruffin considered whether a man could be charged with assault for shooting a slave girl in the back as she ran away from him. A North Carolina jury had found the action “cruel and unwarrantable, and disproportionate to the offense committed by the slave.” According to Judge Ruffin, however, the institution of slavery cordoned off a realm of private violence that the state was powerless to proscribe. The “wrath of a master,” Ruffin maintained, “was generally practiced with impunity, by reason of its privacy.” The right to abortion is often defended in terms of a more general right to privacy, and this is precisely the parallel Jackson drew between slavery and abortion in his editorial.

In addition to the argument that laws protecting slavery and abortion each sanction and privatize a great evil, many judicial conservatives have directly compared the Supreme Court's jurisprudence in two of the Court’s landmark decisions: Dred Scott v. Sandford (1857) and Roe v. Wade (1973). During an unscripted moment in the 2004 presidential debates, for example, President George W. Bush offered the “Dred Scott case” as one “type of person” he would not appoint to the Supreme Court.

Many left-leaning journalists interpreted Bush’s cryptic remarks as a covert attack on Roe v. Wade. The title of Katha Pollit’s article in The Nation soon declared, “Roe=Dred” while Timothy Noah’s piece in Slateannounced that “‘DredScott’ turns out to be a code word for ‘Roe v. Wade.’” The Los Angeles Times’ national political reporter, Peter Wallsten, explained a few days later that Bush had “a history of using language with special meaning to religious conservatives” and noted the allegation that “the DredScott reference was an attempt” to placate pro-life voters “without alienating moderates.”

So what, exactly, is the alleged jurisprudential connection between DredScott and Roe v. Wade? According to many prominent conservatives—including the late failed Supreme Court nominee Robert Bork, current Supreme Court Justice Antonin Scalia, and former Senate Judiciary Committee Chairman Orrin Hatch (R-UT)—the fatal constitutional flaw in each decision was its reliance on the legal doctrine of “substantive due process.”

A simplified version of this common legal argument is as follows. DredScott found a constitutional right to own slaves in the Fifth Amendment's Due Process Clause; Roe v. Wade found a constitutional right to an abortion in the Fourteenth Amendment's Due Process Clause. Yet neither clause is meant to confer substantive rights, and neither slavery nor abortion appears in the actual text of the clauses in question (which simply stipulate that the government will not deprive any “person” of “life, liberty, or property without due process of law”). Therefore, the argument goes, any judge who gives the Due Process Clause a substantive gloss is illicitly substituting his own policy preferences for those of the legislature.

My own take is that judicial conservatives have overplayed the due process card. At the end of the day, it is impossible to avoid some kind of substantive analysis in constitutional adjudication. Even if judges confined themselves to considering procedural norms rather than substantive rights, judges would still have to decide (a) whether a human being constitutes a legitimate species of property; (b) what it means to be a person; (c) what it means to be deprived of liberty; and (d) what it means for something to be law.

The deeper connection between these cases is found in explicit and implied substantive answers to these fundamental questions. As many others have argued, Roe is like DredScott not because of a technical doctrinal error common to each, but because in each case the Court got the answers to these substantive questions so disastrously wrong.

Politics

For citizens who view the world in a way that makes slavery and abortion morally analogous, there is also a compelling political parallel between DredScott and Roe v. Wade. Each decision gave rise to vibrant oppositional political movements, and the decisions required conscientious citizens to think through the Supreme Court’s role in the scheme of constitutional government. “When it comes to cases such as DredScott and Roe,” Robert George notes,

there seem to be but two options available to citizens who recognize the profound injustice these decisions work: either citizens are to treat the legitimacy of the Constitution as gravely weakened, or they are to deny that the Court has the authority to settle definitively the meaning of the Constitution—in other words, either the Constitution is illegitimate or the Court is behaving illegitimately.

For many of the people morally opposed to slavery in the nineteenth century, the solution to this dilemma was to maintain fidelity to the Constitution but deny that the Supreme Court can authoritatively settle fundamental constitutional disputes. Abraham Lincoln eloquently summarized the logic of this position in his First Inaugural Address. If the “policy of the Government upon vital questions is to be irrevocably fixed by the Supreme Court,” he insisted, then the “people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

For the past forty years, many citizens have stubbornly refused to resign their government into the hands of that eminent tribunal, and the Supreme Court has been powerless to settle the political conflict over abortion. Recent legislative restrictions on late-term abortion in Arizona and Texas provide the salient point of political conflict today. As debate over the morally and politically divisive issue of abortion continues, it is important for our friends on the left to understand why many social conservatives find analogies between slavery and abortion to be compelling—and why careless denunciations of the analogy ring hollow.